My last post went after some dumb lessons people were drawing from ancient Rome. In the spirit of being constructive, here's a better lesson:
So for a long time Rome's legal system had these people called the jurists. If you were in a lawsuit you would go to a jurist and tell him about your case. Then he'd write a legal opinion applying the law to your facts (normally favorably), tell you exactly what to plead, etc. He wouldn't actually argue the case -- advocates like Cicero were for that -- but he'd come up with smart reasons for why you should win, and would grapple in smart ways with any novelties or tough questions of law your case presented.
If a Jurist was particularly smart, his decisions would sort of take on an air of gospel truth, and eventually become law. And this worked great. Over time the Romans developed the most important legal system in world history, still the basis of the law in dozens of countries, exactly this way. But as time dragged on more and more jurists kept writing. By the middle of the empire, when jurists stopped being a thing, there was a *lot* of gospel truth out there, written by a *lot* of well respected jurists.
So it became a library sciences problem. And, as they have so often in the past, the library sciences failed civilization. Romans just didn't have the publishing industry or the filing skills to make sure anyone -- much less hick lawyers out in the provinces -- had access to what every jurist said ever. So some lawyer in northern France would go on vacation in Spain and come back with a bunch of books he found (authentic? who knows!) from famous jurists. Suddenly, he's throwing out established legal "facts" no one in the entire province had ever heard before. Big problem!
So the emperor Justinian fixed all that. First, he basically pruned the list of people whose writings were considered "canon." Then, he went through the writings of the people who were left, cutting and pasting, arranging by topic, and throwing a lot of stuff out. Only what he left in counted as law. That became the digest, and it's the most important legal work ever in the history of animals.
So what can we learn from all this? Well, sometimes perfectly good methods for generating law, if left on too long, generate too much law. And sometimes going through all that big mess of law and throwing out the bad stuff and keeping the good stuff works wonders.
This has a huge bearing on our society. We don't have jurists, but we do have the common law, and the most unique characteristic of common law legal systems is that judges can make law. Full stop. When Americans talk about "the law," they aren't just talking about all the bills passed in all the legislatures, they're talking about every word every appellate judge has said since the 1700's. And that's a lot of law!
Fortunately, library science has kept up -- who knows where we would be without computers -- but while we are physically capable of managing all that law, you can't help but wonder if all the expense is worth it. When you hire a lawyer you are paying for him to subscribe to a service that collects and annotates all those cases, paying for him to search through all those cases, and paying for him to try to make sense of all of them and how they affect you. It ain't cheap! Multiply that by hundreds of thousands of lawyers and you get a lot of money being thrown after this stuff.
People are cognizant of this I think, though it's hard to separate complaints that the law is too complicated (in this complex a society, probably inevitable) from the complaint that there is just too much of the damn stuff. But even though people are aware of it, you almost never hear anyone propose Justinian's solution: let's just throw out a lot of the common law. People have codified the common law before, but that process, while radical, normally clarifies that anything not intentionally changed in the common law still matters, and normally allows for past common law to interpret the new code, so it's not as radical as what I am suggesting: put together some panels, decide what cases count and what don't, and move on, the vast bulk of American common law gutted from the system. Will it be a political process? Probably. Will it run into due process and contract clause problems if it tries to be retroactive? Yup. Is it still worth doing? I don't know! But it's worth thinking about.
I suspect your opinion on the indeterminacy of the law -- how capable the law if of "forcing" outcomes to legal cases on judges and juries -- affects how you think about the Justinian solution. If you think the law is pretty indeterminate, then all that common law floating around doesn't do much but complicate the process of judges making pragmatic policy decisions. If you think the law forces decisions on judges, then all that common law floating out there should make decisions more automatic and easy, since so many cases have already been addressed.
Short blogging, I an't good at it.
Pessimistic reasoning undermined by epistemic uncertainty.
I guess I listen to too much Russ Roberts on econtalk, but I thought this was going to be another warning about trying to control an emergent process from the top down. Should I be surprised it worked?
ReplyDeleteAlso, I was thinking about the way John Cochrane talks about regulation, more or less is the wrong dictonomy. Often we really want better regulation, and advocating more restrictive regulation doesn't necessarily mean we need more regulation (as in ever growing books of code).
Who says it worked! The Western Empire had already collapsed and, as I recall, Byzantium didn't use the corpus iuris civilis (the three legal texts Justinian produced as emperor: The Institutes (summary of the law for students), The Code (laws he passed) and The Digest (see post)) for long.
ReplyDeleteHundreds of years later (I think around the 11th century), some medieval dudes would rediscover Justinian's legal works and treat them with almost religious reverence (it was pretty impressively thought out stuff compared to the law they had in their society). Over time, lawyers would study the old Roman laws and then push for their adoption in contemporary legal systems. Eventually both pressure from the bottom and directives from the top got Roman law adopted all over europe (though not uniformly, and even in a region the Ius Commune would often sit beside other legal regimes, like customary law), and it became the Ius Commune.
In general I think the "top down or bottom up" question in law is sort of irrelevant. Because the law is the mechanism by which rulers rule, there will always be a top down element. But because each case is different, people actively search for loopholes, and it is impossible to plan ahead for every possible fact pattern, there will always be a bottom up need to deal with how individual cases are playing out on the ground. The best systems have both.